Vermouth

Jon Wayne Vermouth and Harold W. Buker appeal from judgments (orders granting probation) entered after a jury found them guilty of possession of marijuana (a lesser included offense of possession *356 of marijuana for sale, the crime charged in count I of the information) and cultivation of marijuana (count II). A motion for new trial was granted as to a third conviction (possession of restricted dangerous drugs). A fourth charge, maintaining a place for the sale of marijuana, had been dismissed on motion of the People at the beginning of the trial.

On appeal defendants raise the following contentions:

Right to Counsel

On July 28, 1971, law enforcement officers searched defendants’ residence pursuant to a warrant. They seized many items including: (1) documents tending to establish the defendants were the lessees of the residence, (2) marijuana plants growing in pots and planters on the sun deck of the house, (3) marijuana, restricted dangerous drugs and a small amount of cocaine and (4) $6,424 in currency. On the basis of the evidence seized, defendants, and two other persons who were present in the house at the time of the search, were arrested and charged with…

I dissent and would affirm.

The majority opinion reverses on the ground the trial court abused its discretion in denying the motion of defendants, made two days before the trial date, set by stipulation some two months earlier, for a continuance of an unspecified length of time so that they might have access to an undetermined amount of money whose contingent availability was in the uncertain future, for the purpose of obtaining new counsel whose name or names were not mentioned and with whom no negotiation had ever been made, so far as was shown.

The right of a criminal defendant to counsel of his own choice, and the circumstances in which the denial of a motion for continuance may or may not be a denial of that right, need not be discussed further. Because of varying circumstances, the cases generally have been decided on an ad hoc basis. (See People v. Crovedi, 65 Cal.2d 199 [ 53 Cal.Rptr. 284 , 417 P.2d 868 ]; In re Hochberg, 2 Cal.3d 870 [ 87 Cal.Rptr. 681 , 471 P.2d 1 ]; In re Watson, 6 Cal.3d 831 [ 100 Cal.Rptr. 720 , 494 P.2d 1264 ]; People v. Manchetti, 29 Cal.2d 452 [ 175 P.2d 533 ]; People v. Johnson, 5 Cal.App.3d 851 [ 85 Cal.Rptr. 485 ]; People v. Smyers, 261…

Jon Wayne Vermouth and Harold W. Buker appeal from judgments (orders granting probation) entered after a jury found them guilty of possession of marijuana (a lesser included offense of possession of marijuana for sale, the crime charged in count I of the information) and cultivation of marijuana (count II). A motion for new trial was granted as to a third conviction (possession of restricted dangerous drugs). A fourth charge, maintaining a place for the sale of marijuana, had been dismissed on motion of the People at the beginning of the trial.

On appeal defendants raise the following contentions:

(1) their constitutional right to counsel of their choice was violated by the trial court's refusal to grant their motion for the return of money seized by the police from their residence ($6,424), or their motion to continue the criminal trial until their right to the money had been resolved;

(2) their motion to suppress evidence was erroneously denied;

(3) the evidence is insufficient to support their convictions of cultivation of marijuana;

(4) the prosecutor was guilty of prejudicial misconduct during his argument to the jury.

On July 28, 1971, law…